Freeze v. State

• Decision Date: 09 February 1938
• Docket Number: No. 19381.,19381.
• Citation: Freeze v. State, 113 S.W.2d 539, 133 Tex.Cr.R. 595 (Tex. Crim. App. 1938)
• Parties: FREEZE v. STATE.
• Court: Texas Court of Criminal Appeals

113 S.W.2d 539

FREEZE v. STATE.

No. 19381.

Court of Criminal Appeals of Texas.

February 9, 1938.

Appeal from Nacogdoches County Court; Jack Varner, Judge.

Hut Freeze was convicted of unlawfully selling intoxicating liquor, and he appeals.

Reversed and remanded.

Russell & Edwards, of Nacogdoches, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

The conviction is for the unlawful sale of intoxicating liquor; penalty assessed at a fine of $500 and confinement in the county jail for a period of eight months.

The State's witness, Rogers P. Boyd, an employee of the Texas Liquor Control Board, testified that he was acquainted with the appellant, who conducted a café and filling station on the Lufkin highway, several miles south of Nacogdoches; that in the afternoon of April 20, 1937, the witness drove his car to the front of the appellant's place of business and asked to buy a pint of whisky. The witness remained in his car while appellant went into the woods. He returned in about five minutes with a pint of Wilkins Family whisky, which he sold to the witness for $1.50. After handing the whisky to Boyd, the appellant said: "You are one of them `L' men." He then tried to get the whisky back from him, but Boyd drove on off towards Nacogdoches. The whisky was introduced in evidence upon the trial and identified by Boyd as that which he had purchased from the appellant.

Appellant testified upon the trial that Boyd came to his place of business and asked to buy some whisky, stating that he was fishing and had some people with him down on the river who wanted some whisky. Appellant said he noticed some fishing tackles and poles in Boyd's car; and also saw a pint of whisky under his hat on the front seat. Appellant testified that he knew Boyd was an "L" man working for the Liquor Control Board and denied selling any whisky to him. However, he admitted on cross-examination that he had been indicted in the county a number of times for violating the whisky law.

In bill of exception No. 1 complaint is made of the closing argument of the county attorney in which he used the following words: "You investigate the record of Hut Freeze when you get off the jury and you will find that the law has not fixed the penalty too high."

Objection was made to the remark upon the ground that it was not made in answer to any argument of counsel for the appellant, was not called for by the evidence and that it was a...